[Federal Register Volume 76, Number 122 (Friday, June 24, 2011)]
[Proposed Rules]
[Pages 37045-37048]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-15883]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 171

[EPA-HQ-OPP-2011-0049; FRL-8863-7]
RIN 2070-AJ77


Synchronizing the Expiration Dates of EPA Pesticide Applicator 
Certificates With the Underlying State or Tribal Applicator Certificate

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: Restricted use pesticides (RUP) are those which may generally 
cause unreasonable adverse effects on the environment without 
additional restrictions. RUPs may only be applied by or under the 
direct supervision of an applicator certified as competent by a 
certifying agency. A State, tribe, or Federal agency becomes a 
certifying agency by receiving approval from EPA on their certification 
plan. In areas not covered by a certifying agency, EPA may

[[Page 37046]]

establish a Federal certification plan and issue Federal certificates 
directly. In cases where EPA will issue a Federal certificate based on 
an existing valid certificate from a certifying agency, this proposed 
rule would synchronize the expiration dates on the Federal certificate 
with that of the certificate on which it is based.

DATES: Comments must be received on or before August 23, 2011.

ADDRESSES: Submit your comments, identified by docket identification 
(ID) number EPA-HQ-OPP-2011-0049, by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the on-line instructions for submitting comments.
     Mail: Office of Pesticide Programs (OPP) Regulatory Public 
Docket (7502P), Environmental Protection Agency, 1200 Pennsylvania 
Ave., NW., Washington, DC 20460-0001.
     Delivery: OPP Regulatory Public Docket (7502P), 
Environmental Protection Agency, Rm. S-4400, One Potomac Yard (South 
Bldg.), 2777 S. Crystal Dr., Arlington, VA. Deliveries are only 
accepted during the Docket Facility's normal hours of operation (8:30 
a.m. to 4 p.m., Monday through Friday, excluding legal holidays). 
Special arrangements should be made for deliveries of boxed 
information. The Docket Facility telephone number is (703) 305-5805.
    Instructions: Direct your comments to docket ID number EPA-HQ-OPP-
2011-0049. EPA's policy is that all comments received will be included 
in the docket without change and may be made available on-line at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through regulations.gov or e-
mail. The regulations.gov website is an ``anonymous access'' system, 
which means EPA will not know your identity or contact information 
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA without going through regulations.gov, 
your e-mail address will be automatically captured and included as part 
of the comment that is placed in the docket and made available on the 
Internet. If you submit an electronic comment, EPA recommends that you 
include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses.
    Docket: All documents in the docket are listed in the docket index 
available at http://www.regulations.gov. Although listed in the index, 
some information is not publicly available, e.g., CBI or other 
information whose disclosure is restricted by statute. Certain other 
material, such as copyrighted material, is not placed on the Internet 
and will be publicly available only in hard copy form. Publicly 
available docket materials are available either in the electronic 
docket at http://www.regulations.gov, or, if only available in hard 
copy, at the OPP Regulatory Public Docket in Rm. S-4400, One Potomac 
Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. The hours of 
operation of this Docket Facility are from 8:30 a.m. to 4 p.m., Monday 
through Friday, excluding legal holidays. The Docket Facility telephone 
number is (703) 305-5805.

FOR FURTHER INFORMATION CONTACT: Amaris Johnson, Field and External 
Affairs Division (7506P), Office of Pesticide Programs, Environmental 
Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-
0001; telephone number: (703) 305-9542; fax number: (703) 308-2962; e-
mail address: [email protected].

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this action apply to me?

    You may be potentially affected by this action if you are or intend 
to become a certified applicator under an EPA Federal certification 
plan. Certified applicators are included in 3 major industries in the 
North American Industrial Classification System (NAICS) described as 
crop production, animal production or exterminating, and pest control 
services. Potentially affected entities may include, but are not 
limited to:
     Crop Production (NAICS code 111), e.g., individuals that 
are private certified applicators on farms.
     Animal Production (NAICS code 112), e.g., individuals that 
are private certified applicators on farms.
     Exterminating and Pest Control Services (NAICS code 
561710), e.g., individuals that are commercial certified applicators 
for hire.
    This listing is not intended to be exhaustive, but rather provides 
a guide for readers regarding entities likely to be affected by this 
action. Other types of entities not listed in this unit could also be 
affected. The NAICS codes have been provided to assist you and others 
in determining whether this action might apply to certain entities. If 
you have any questions regarding the applicability of this action to a 
particular entity, consult the person listed under FOR FURTHER 
INFORMATION CONTACT.

B. What should I consider as I prepare my comments for EPA?

    1. Submitting CBI. Do not submit CBI to EPA through regulations.gov 
or e-mail. Clearly mark the part or all of the information that you 
claim to be CBI. For CBI in a disk or CD-ROM that you mail to EPA, mark 
the outside of the disk or CD-ROM as CBI and then identify 
electronically within the disk or CD-ROM the specific information that 
is claimed as CBI. In addition to one complete version of the comment 
that includes information claimed as CBI, a copy of the comment that 
does not contain the information claimed as CBI must be submitted for 
inclusion in the public docket. Information so marked will not be 
disclosed except in accordance with procedures set forth in 40 CFR part 
2.
    2. Tips for preparing your comments. When submitting comments, 
remember to:
    i. Identify the document by docket ID number and other identifying 
information (subject heading, Federal Register date and page number).
    ii. Follow directions. The Agency may ask you to respond to 
specific questions or organize comments by referencing a Code of 
Federal Regulations (CFR) part or section number.
    iii. Explain why you agree or disagree; suggest alternatives and 
substitute language for your requested changes.
    iv. Describe any assumptions and provide any technical information 
and/or data that you used.
    v. If you estimate potential costs or burdens, explain how you 
arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
    vi. Provide specific examples to illustrate your concerns and 
suggest alternatives.
    vii. Explain your views as clearly as possible, avoiding the use of 
profanity or personal threats.
    viii. Make sure to submit your comments by the comment period 
deadline identified.

II. What is the agency's authority for taking this action?

    This proposed rule is issued pursuant to the authority given the 
EPA

[[Page 37047]]

Administrator in sections 11 and 25 of the Federal Insecticide, 
Fungicide, and Rodenticide Act (FIFRA). Section 11 of FIFRA, 7 U.S.C. 
136i, requires EPA to provide certification plans for applicators of 
restricted use pesticides. Section 25 of FIFRA, 7 U.S.C. 136w, 
authorizes EPA to issue regulations to carry out provisions of FIFRA.

III. What action is the agency taking?

    EPA is proposing to amend 40 CFR 171.11(e). This action would 
synchronize the expiration dates for the EPA Federal and certifying 
agency certifications of restricted use pesticide applicators. This 
minor revision does not pose any additional requirement or burden, and 
is expected to have a beneficial impact on affected entities, without 
impacting human health or the environment. EPA will benefit through the 
reduction of administration of Federal certification plans.

IV. Background

    Under the provisions of FIFRA section 3(d)(1)(C), EPA shall 
classify a pesticide for restricted use, if, absent additional 
regulatory restrictions, the Agency determines that it may generally 
cause unreasonable adverse effects on the environment. RUPs may only be 
applied by a certified applicator or under the direct supervision of a 
certified applicator.
    Pesticide applicators can be certified either by a certifying 
agency (a State, Tribe, or non-EPA Federal agency that has an EPA-
approved certification plan), or directly by EPA through a Federal 
certification plan for an area or situation not covered by a certifying 
agency's plan. Applicators must demonstrate competency to the 
certifying agency granting the certificate, according to the 
requirements of that agency's plan. Currently, all 50 States and four 
tribes are certifying agencies (i.e., they implement their EPA-approved 
certification plans). Applicators certified by a State or a certifying 
tribe may apply RUPs in their State or that tribe's Indian country 
without a Federal certificate. However, under 40 CFR 171.11, in areas 
where there is no EPA-approved certification plan in effect (currently, 
most of Indian country), EPA may implement a Federal plan, thereby 
allowing applicators to use RUPs in the area covered by the plan after 
receiving Federal certification. Under 40 CFR 171.11(e), a Federal plan 
may include an option that allows applicators to be issued an EPA 
Federal certificate after submitting to EPA a certification form along 
with documentation of a valid certificate from a certifying agency, 
without further demonstration of competency.
    Applicator certificates have expiration dates to help ensure that 
certified applicators maintain their competency. All certifying 
agencies implement a recertification program for applicators. These 
programs require certified applicators to continue to meet the 
competency requirements either through continuing education or 
examination.

V. Why is the agency taking this action?

    Section 171.11(e) states that an EPA Federal certificate based on a 
certifying agency's certificate is valid for 2 years for commercial 
applicators and 3 years for private applicators, or until the 
expiration date of the original certifying agency certificate, 
whichever occurs first. The duration of the certification period varies 
significantly among States, with some currently being shorter and some 
longer than the Federal certificate maximum of 2 or 3 years. This 
proposed rule would eliminate the 2 or 3 year maximum for Federal 
certificates, and allow Federal certification to expire at the same 
time as the underlying certifying agency certificate. Therefore, 
applicators who obtain Federal certification using a State certificate 
that expires in the same time as the current Federal maximum, or 
shorter time, would not be affected by this proposed rule.
    However, the proposed rule would eliminate potential drawbacks to 
applicators holding a Federal certificate when the underlying State 
certificate is valid for a longer time period than the maximum 2 or 3 
years for the EPA Federal certificate. Under the current regulation, 
for an applicator certified in such a State to continue a Federal 
certification, prior to expiration of their Federal certificate they 
would need to complete a new application form and again provide written 
evidence of the valid state certification. Federal recertification in 
this situation becomes an unnecessary, additional paperwork burden for 
both EPA and the applicator with no additional benefits to human health 
or the environment since the applicator can reapply for a Federal 
certificate using the same underlying certificate with no new 
demonstration of competency.
    A potential benefit to Federal recertification occurring more 
frequently than the State's, is that in checking the current validity 
of the applicant's underlying State certificate, EPA may discover that 
the issuing State has modified, suspended, or revoked the certificate, 
thereby giving EPA the opportunity to deny the recertification 
application or modify the new Federal certificate. However, EPA expects 
to learn of modifications, suspensions, or revocations of State 
certificates independent of the timing of Federal recertification. 
Given that EPA would make decisions on modifications, suspensions, or 
revocations of Federal certificates independent of recertification, 
Federal recertification at a different time from the State 
recertification would be of no benefit. Federal recertification at the 
same time as the State recertification, as proposed, would be 
beneficial in that it would be a recertification based on newly 
demonstrated competency. In addition, different expiration dates for 
the Federal certificate and the original certificate may cause 
unnecessary complication and confusion for applicators and EPA. The 
added confusion and paperwork lowers the probability of successful 
compliance by the regulated community.

VI. FIFRA Mandated Reviews

    In accordance with FIFRA section 25(a) and (d), EPA submitted a 
draft of this proposed rule to the Committee on Agriculture in the 
House of Representatives, the Committee on Agriculture, Nutrition, and 
Forestry in the United States Senate, the Secretary of Agriculture, and 
the FIFRA Scientific Advisory Panel (SAP). The SAP and the Secretary of 
Agriculture waived review of this proposed rule.

VII. Statutory and Executive Order Reviews

    This action proposes to allow EPA to use the same expiration date 
for the certification it grants, using the expiration date of the valid 
certification upon which the EPA certification is based. It does not 
otherwise propose to amend or impose any other requirements. The 
proposed rule will not otherwise involve any significant policy or 
legal issues, and will not increase existing costs. In fact, 
synchronizing the expiration dates can reduce burden because some 
applicators will have to complete less paperwork by having a reduced 
frequency of Federal recertification.
    As such, the Office of Management and Budget (OMB) has determined 
that this is not a ``significant regulatory action'' under Executive 
Order 12866, entitled Regulatory Planning and Review (58 FR 51735, 
October 4, 1993). Nor does it impose any additional information 
collection burden that requires review by OMB under the provisions of 
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). The 
information collection activities

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contained in the regulations are already approved under OMB control 
number 2070-0029 (EPA ICR No. 0155.09) and the changes to the 
expiration date are not expected to change the covered activities. An 
agency may not conduct or sponsor, and a person is not required to 
respond to a collection of information unless it displays a currently 
valid OMB control number. The OMB control numbers for certain EPA 
regulations in 40 CFR, in addition to appearing in the Federal 
Register, are also listed in 40 CFR part 9.
    Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA) 
(5 U.S.C. 601 et seq.), the Agency hereby certifies that this proposed 
rule does not have a significant adverse economic impact on a 
substantial number of small entities. The proposed revision that would 
synchronize the certification expiration dates for restricted use 
applicators is not expected to have any adverse economic impacts on 
affected entities, regardless of their size. In general, EPA strives to 
minimize potential adverse impacts on small entities when developing 
regulations to achieve the environmental and human health protection 
goals of the statute and EPA. EPA solicits comments specifically about 
potential small business impacts.
    State, local, and tribal governments are not regulated by or 
affected by this proposed rule, so it is not expected to affect these 
governments. Accordingly, pursuant to Title II of the Unfunded Mandates 
Reform Act (UMRA) (2 U.S.C. 1531-1538), EPA has determined that this 
action is not subject to the requirements in sections 202 and 205 of 
UMRA because it does not contain a Federal mandate that may result in 
expenditures of $100 million or more for State, local, and tribal 
governments, in the aggregate, or for the private sector in any 1 year. 
In addition, this action does not significantly or uniquely affect 
small governments or impose a significant intergovernmental mandate, as 
described in sections 203 and 204 of UMRA. For the same reasons, EPA 
has determined that this proposed rule does not have ``federalism 
implications'' as specified in Executive Order 13132, entitled 
Federalism (64 FR 43255, August 10, 1999), because it would not have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in the Order. Thus, Executive Order 13132 does not apply to 
this proposed rule. Nor does it have ``tribal implications'' as 
specified in Executive Order 13175, entitled Consultation and 
Coordination with Indian Tribal Governments (65 FR 22951, November 9, 
2000). Thus, Executive Order 13175 does not apply to this action.
    Since this action is not economically significant under Executive 
Order 12866, it is not subject to Executive Order 13045, entitled 
Protection of Children from Environmental Health Risks and Safety Risks 
(62 FR 19885, April 23, 1997), and Executive Order 13211, entitled 
Actions Concerning Regulations that Significantly Affect Energy Supply, 
Distribution, or Use (66 FR 28355, May 22, 2001). In addition, EPA 
interprets Executive Order 13045 as applying only to those regulatory 
actions that concern health or safety risks, which is not the case in 
this proposed rule.
    This action does not involve technical standards that would require 
the consideration of voluntary consensus standards pursuant to section 
12(d) of the National Technology Transfer and Advancement Act (NTTAA) 
(15 U.S.C. 272 note).
    This action does not have an adverse impact on the environmental 
and health conditions in low-income and minority communities. 
Therefore, this action does not involve special consideration of 
environmental justice related issues as specified in Executive Order 
12898, entitled Federal Actions to Address Environmental Justice in 
Minority Populations and Low-Income Populations (59 FR 7629, February 
16, 1994).

List of Subjects in 40 CFR Part 171

    Environmental protection, Indians--lands, Intergovernmental 
relations, Pesticides and pests, Reporting and recordkeeping 
requirements.

    Dated: June 14, 2011.
Lisa P. Jackson,
Administrator.

    Therefore, it is proposed that 40 CFR chapter I be amended as 
follows:
    1. The authority citation for part 171 continues to read as 
follows:

    Authority:  7 U.S.C. 136i and 136w.

    2. Amend Sec.  171.11 by revising paragraph (e) to read as follows:


Sec.  171.11  Federal certification of pesticide applicators in States 
or on Indian Reservations where there is no approved State or Tribal 
certification plan in effect.

* * * * *
    (e) Recognition of other certificates. The Administrator may issue 
a certificate to an individual possessing any other valid Federal, 
State, or Tribal certificate without further demonstration of 
competency. The individual shall submit the EPA certification form and 
written evidence of valid certification to the appropriate EPA Regional 
Office. The Administrator may deny issuance of such certificate if the 
standards of competency for each category or subcategory identified in 
the other Federal, State, or Tribal certificate are not sufficiently 
comparable to justify waiving further demonstration of competency. The 
Administrator may revoke, suspend, or modify such certificate if the 
Federal, State, or Tribal certificate upon which it is based is 
revoked, suspended, or modified. Unless suspended or revoked, a 
certificate issued under this paragraph is valid until the expiration 
date of the Federal, State, or Tribal certificate.
* * * * *
[FR Doc. 2011-15883 Filed 6-23-11; 8:45 am]
BILLING CODE 6560-50-P